Kentucky Employment Law Blog

"Convenient lapse in memory" accusation by district court reversed by Sixth Circuit; pizza delivery driver lives to fight another day

A pizza delivery driver sued Papa John's under the Fair Labor Standards Act (FLSA) claiming that he'd been under-reimbursed for his vehicle expenses, an omission that reduced his pay under the minimum wage. Papa John's sought to compel arbitration, a forum where it expected an advantage. Papa John's relied on a electronic document that it claimed the driver had signed electronically when he was hired. The driver swore he "had never seen" the arbitration agreement and "had never heard about it." He asked for targeted discovery regarding whether he had actually signed the electronic document. The case is Bazemore v. Papa John's. 

U.S. District Judge Rebecca Grady Jennings saw it Papa John's way and accused the driver of "a convenient lapse in memory." 

The Sixth Circuit reversed, observing that "we see no reason whatever that would prevent a reasonable factfinder from believing [the driver's] testimony -- which means that his testimony created an issue of fact." The district court made two other errors: (1) putting the burden of proof on the driver instead of Papa John's to prove an agreement existed; and, (2) excessive nitpicking about the driver's sworn statement in an assertion that he did not say, specifically, that he had not signed the document. But the Sixth Circuit had none of that, since "a reasonable factfinder could plainly infer that, if [the driver] had not seen the agreement, he had not signed it either." 

Judge Jennings stepped out of her role here and took Papa John's side and, for her trouble, got reversed. But the driver, who Judge Jennings has accused of being unbelievable, has to negotiate a hearing where Judge Jennings is the factfinder. It seems the driver faces an uphill battle. 

Federal court has become the place where ordinary people as plaintiffs go to die. 

And so it goes. 

Robert L. Abell
www.RobertAbellLaw.com

 

Baptist Healthcare's discovery stonewalling struck down by Court of Appeals

The stonewalling of Baptist Healthcare Systems (BHS) to a former employee’s discovery requests in a wrongful termination and defamation suit got nowhere with the Court of Appeals, which reversed both a discovery order and a summary judgment granted by Jefferson Circuit Court. Becker v. Baptist Healthcare Systems. The Court’s analysis and discussion of the attorney-client privilege’s applicability is the most important point of the case. The attorney-client privilege was asserted by BHS as to what it described in its own brief as “25 email communications made between Baptist employees but at the direction of litigation counsel.”

The Court reiterated the three options that a party actually asserting a bona-fide attorney-client privilege objection to discovery may follow that the Kentucky Supreme Court laid out in Collins v. Braden, 384 S.W.3d 154 (Ky. 2012). Those three options are: (1) in camera review by the presiding trial court judge; (2) producing a detailed privilege log with descriptions of the documents sufficient to establish the existence of the privilege (i.e., more than their titles); or, (3) making an offer of proof that sufficiently describes the documents in question. Most circuit judges prefer the privilege log option, which is what BHS decided to go with.

A privilege log, however, must provide enough detail about the communication to establish the existence of the privilege, and the Court found that BHS provided to be inadequate. Furthermore, the court observed that “communications between a client’s employees” ordinarily will not be privileged.

The Court then advised that any claim of privilege must be rooted in KRE 503, which requires the employees in question to fit the definition of a type of “person” to which that rule refers. There are two types of such persons: a “client” and a “lawyer.” Merely denominating the employees as having communicated “at the direction of litigation counsel” did not make any of them a “representative of the lawyer” under KRA 503(a)(4). The Court did allow that an employee might qualify as a “representative of the client” but this required that they be vested with the specific authority recited in KRE 503(a)(2), and further advised that all of the email communicants must be a “representative of the client” for their communications to be privileged. Further, the Court added, that the communications must be confidential as defined by KRE 503(a)(5).

The court reversed the summary judgment granted by the Jefferson Circuit Court and also the discovery order upholding BHS’s discovery objections. The case will go back for further proceedings and odds are that BHS will try to settle the case before it has to disclose the email communications, which may well enhance the overall value of the case.  

Robert L. Abell
www.RobertAbellLaw.com

Sixth Circuit insulates law enforcement agencies from public scrutiny

The Sixth Circuit's ruling recently in Kirkland v. City of Maryville, where it affirmed a summary judgment granted the city, will serve powerfully to insulate law enforcement agencies from public scrutiny. This undermines the long-established notion that speech leading to scrutiny of public agencies and those running them is of the highest public concern and, therefore, of compelling First Amendment protection. See Solomon v. Royal Oak Twp., 842 F.2d 862, 865 (6th Cir. 1988). 

The plaintiff in Kirkland was employed as a patrol officer by the city police department. She posted on her personal Facebook page criticisms of the county sheriff and his department, where she'd been employed previously. Her supervisors at the city asked her to stop the posts, because they "became concerned that her posts would undermine" the city's relationship with the sheriff's office. Later, Kirkland made two more posts on Facebook critical of the sheriff who was running for re-election. A "concerned citizen" complained to the city about Kirkland's posts critical of the incumbent sheriff. Kirkland was reprimanded for the critical Facebook posts; she was later suspended for three days. Six months later, Kirkland shared on Facebook "an unflattering article" about the sheriff and possible corruption in his department: "Sheriff's connections to private contractor are cozy, but lawyer says not illegal." Kirkland added the comment: "Just like I'm sure it's not illegal to ban a female officer from training for not voting for you either." Kirkland was terminated "because her post violated Department orders requiring officers to maintain good relations with the public and other law enforcement agencies." 

Kirkland claimed that her firing violated her First Amendment free speech rights to comment on the sheriff's abilities, the operations of his office and its possible corruption. The district court granted summary judgment to the city, which the Sixth Circuit affirmed in an opinion written by Judge Chad Readler and joined by Judges Amul Thapar and Ralph Guy. 

The Sixth Circuit agreed that Kirkland's speech, "which suggested sex discrimination and political retribution by an elected official," was protected by the First Amendment. The court did not acknowledge that Kirkland's speech also raised the issue of the sheriff's integrity. In any event, the summary judgment was affirmed because the court ruled that the city's interests in maintaining a good working relationship with the sheriff's department outweighed Kirkland's First Amendment rights.

The court also added that Kirkland's "history" with the sheriff's department, a fact that would seem to make her exceptionally well-situated to assess the sheriff and the operation of his department, weakened her First Amendment rights. Part of the plaintiff's "history" with the sheriff's department was being fired by the sheriff, something the Sixth Circuit accepts as deserved, the point for the court being that Kirkland was a trouble-maker of long-standing. But this is contradicted and powerfully by the fact that the city police department hired Kirkland after she was fired by the sheriff, a fact that would indicate that little regard was given the sheriff's firing of Kirkland. 

The Sixth Circuit's decision will serve to insulate law enforcement agencies from public criticism and scrutiny. First, law enforcement officers are best situated to become knowledgeable regarding the deficiencies in the personnel, leadership and/or operations of other law enforcement agencies that they cross paths with. The Sixth Circuit's ruling will deter the exposure of corruption and other malfeasance in a law enforcement agency by those most qualified and able to assess it. Second, every public agency everywhere can make the assertion that maintaining good relationships with law enforcement agencies overrides the First Amendment rights of its employees, no matter if they work in parks and recreation, sanitation or whatever. The Sixth Circuit has alerted public employers of a fail-safe defense that will quash the First Amendment rights of public employees and insulate law enforcement agencies from public scrutiny. 

And federal courts are where plaintiffs go to die: Stunning drop in federal plaintiffs’ win rate is complete mystery – new study.

Robert L. Abell
www.RobertAbellLaw.com 

 

Grooms and Hotwalkers Win Overtime Case

Grooms and hotwalkers employed by thoroughbred horse trainer Steve Asmussen were awarded $200,000 plus in overtime pay in a trial court judgment affirmed by the Sixth Circuit in Walsh v. KDE Equine. The appeals court sent the case back for consideration of liquidated damages that would double the amount.

The court described the hours worked each week by these employees as follows:

• hotwalkers work 7 days a week from 5 a.m. to 10:30 a.m.
• some hotwalkers work some in the afternoon, usually 3:00 pm to 4:30 pm, every other day
• hotwalkers typically worked "approximately 44.25 hours per week"
• grooms work 7 days a week usually from 5:00 a.m. to 11:00 a.m. and then from "approximately" 3:00 p.m. to 4:30 p.m.
• grooms work and can earn extra pay one days when one of the horses they see to is racing
• grooms typically work 48.5 to 52.5 hours per week

Both the hotwalkers and the grooms were paid a salary and received "extra compensation for additional tasks outside of their normal duties." But most of the hotwalkers and grooms did "not submit timesheets for the additional hours worked, while others submitted inaccurate time sheets." These additional duties included such things as $25 for unloading hay, $25 for transporting horses to the racetrack and $100 for doing laundry. 

The Sixth Circuit rejected three arguments from trainer Asmussen that overtime pay requirements had been complied with. First was the claim that the "payment scheme provided a premium for a fixed number of overtime hours[.]" This can comply but only when "an employee works a fixed number of overtime and non-overtime hours." Since the weekly workhours of the grooms and hotwalkers varied, this payment scheme did not comply. Second, the employer argued that its scheme met the "fluctuating work weeks" method which can apply "when employees work varying hours from week to week but are paid fixed base salaries." But this method requires accurate records regarding the hours worked by the employees, and trainer Asmussen's outfit did not do this. Trainer Asmussen last contended that overtime requirements were met because hotwalkers and grooms were paid "lump-sums for additional tasks outside of their normal duties." This didn't apply because the lump-sum payments were too regular. 

The overtime owed totaled $211,541.76. The Sixth Circuit sent the case back to the trial court to determine if that amount should be double for trainer Asmussen's willful violation of the overtime law, the Fair Labor Standards Act (FLSA). According to Equibase, horses trained by Steve Asmussen have won 379 races and purse money exceeding $28 million in 2022. 

Robert L. Abell
www.RobertAbellLaw.com

$1.75 Million Retaliation Verdict Against University of Kentucky

 

Robert L. Abell
www.RobertAbellLaw.com

Black employee "suffered heinous racial harassment while employed" but no matter rules Sixth Circuit

Does a black employee who "suffered heinous racial harassment while employed" have a racial harassment claim against the employer? "No" rules the Sixth Circuit today in Burns v. Berry Global, Inc. 

"Ronald Burns suffered intolerable racial harassment at work on account of his race," says the Sixth Circuit, but he has no case in that court. Life, liberty and pursuit of happiness in today's federal courts.

Robert L. Abell
www.RobertAbellLaw.com 

Why Arbitration is Inherently Biased Against Employees

The Washington Post runs a good article on the inequities, no, let me be blunter, the inherent unfairness against employees of the arbitration system for employment matters such as discrimination, sexual harassment and retaliation: Mandatory arbitration cases have soared during the pandemic. Inherent unfairness, structural bias is another way to put it, is a strong assertion so let me explain.

 

The basic fundamental problem with arbitration is that the arbitrators make their living by being arbitrators and this creates an incentive, tolerated nowhere else in our justice system, for the arbitrators to favor the repeat players, the corporations.

 

When an arbitration is commenced, the parties are sent a list of 8-10 arbitrators and permitted to reject some number, perhaps 3 or 4. Since arbitrators are making their living by arbitrating, they don't want to be rejected by either party, they want to be selected and get paid. The best way to serve this interest is to be known as favoring the repeat players, the corporate powers.

 

The Family Dollar corporation discussed in the Washington Post article illustrates the point. If an arbitrator wants to be selected to arbitrate a case and to make money and their living by doing so, he or she is going to favor the party that is going to have thousands of cases per year arbitrated, as opposed to the individual employee who is very unlikely to have more than one in their lifetime. If an arbitrator is thought by Family Dollar to be pro-employee, a view that the company can be expected to take even if the face of the most correct, fairest ruling, Family Dollar will reject them, he or she will not serve on the case and won't get paid. So the arbitration system is fundamentally and inherently skewed in favor of the corporations.

 

The notion of equal justice under law is just not served by the widespread use of forced arbitration. Congress should act, but that is only slightly more likely, given sure-fire Republican opposition in the Senate, than any reader of this post buying soon a winning lottery ticket. 

Robert L. Abell
www.RobertAbellLaw.com

Attorney's Fees & the FLSA: the Sixth Circuit Firmly Rejects Limiting Attorney's Fees to a Percentage of the Recovery

Attorney's fees are recoverable in suits for unpaid overtime under the Fair Labor Standards Act (FLSA), and "a district court abuses its discretion if it limits the fees awardable under hte FLSA to a percentage of the plaintiff's recovery" the Sixth Circuit has held in Rembert v. A Plus Home Health Care Agency. 

The case is a pretty straightforward overtime case, remarkable mainly because (a) the plaintiffs got some good help from the Department of Labor; and, (b) defense counsel's general recalcitrance and failure to "act in accordance with his representations to the court or his obligations under the Rules." Eventually, the plaintiffs' counsel submitted a fee petition requesting an award for 119.9 hours, totaling $38,190 plus $575 in costs. The district court, after sitting on the petition for six months, "reduced counsel's total compensable hours from  a total of 119.9 to 46.2 -- a 61% reduction in compensable hours, and almost twice the reduction that defense counsel had sought." To add insult to injury, the district court, Hon. James E. Graham of the Southern District of Ohio, "cut the fee award an additional $1,660 on the ground that judges in the Southern District of Ohio 'typically approved' fee awards of no more than 35% of the 'total settlement amount' (meaning the amount of the judgment plus the amount of fees and costs awarded)," which left a total of $13,790. Plaintiffs appealed.

After reciting the lodestar calculation method, the Sixth Circuit turned to the district court's capping of the awardable fees at 35% of the total settlement amount. Capping the fees at a percentage of the recovery is an abuse of discretion, as "neither the text nor the purpose of the FLSA supports imposing a proportionality limit on recoverable attorney's fees." 

The Sixth Circuit also faulted the district court for failing to explain adequately why it had cut some of the hours submitted by the plaintiffs' counsel, especially in view of the fact that many "obtained 100% recovery due to them under the Act." First, the Sixth Circuit found it improper to exclude time devoted to gathering information from clients, since "attorneys may communicate directly with their clients" and "the law refers to an attorney-client privilege, not a paralegal-client one." Second, it was error to exclude as duplicative time devoted to communications between the plaintiffs' co-counsel, since "co-counsel may consult each other to avoid duplicative work and otherwise to maximize their efficiency and effectiveness." Third, the district court did not adequately consider to 100% recovery success rate "or that the actions and omissions of defense counsel indisputably prolonged this litigation and rendered it much less efficient than it could have been." 

The Sixth Circuit then did something extraordinary. It reviewed "both the district court's docket in this case, document-by-document, and the billing records of [plaintiffs'] counsel, line-by-line" and concluded that the "district court abused its discretion when it did not grant in full the amounts requested in counsel's fee petition." The Sixth Circuit remanded the case with instructions that plaintiffs' counsel be awarded the full requested amount and noted they were "also entitled to a reasonable fee and costs for this appeal ... which for everyone's sake we hope is not the subject of another appeal." 

Judge Raymond Kethledge authored the Sixth Circuit's opinion and was joined by Judges Eugene Siler and Julia Gibbons. 

Robert L. Abell
www.RobertAbellLaw.com

Proving a Lifting Restriction is a Disability Covered by the ADA

Although the case ultimately went south for the plaintiff and the Sixth Circuit affirmed a summary judgment, the Sixth Circuit's recent decision in Thompson v. Fresh Products is instructive regarding the proof necessary to at least create a fact issue as to whether a lifting restriction is a disability covered by the Americans With Disabilities Act (ADA). 

The plaintiff advanced a number of claims including a disability discrimination claim under the ADA. The district court, Hon. Jack Zouhary of the Northern District of Ohio, ruled that she had failed to establish "that she has a disability because she relied on 'conclusory statements,' did not have any lifting restrictions while at Fresh Products, and continued to work full-time until she was laid off." 

The Sixth Circuit disagreed on this point, citing "Thompson's testimony that her arthritis causes her pain and restricts her ability to do heavy lifting, which, in turn, affects her ability to do some jobs. Although she was not doing heavy lifting at Fresh Products, her doctor gave her lifting restrictions at a previous job. The evidence is sufficient to establish a fact dispute regarding whether Thompson has an impairment that substantially limits one or more of her major life activities, and therefore whether she is disabled under the ADA."

There's two elements here: (1) testimony by the individual as to the condition's tangible limiting and painful effects; and, (2) some medical history documenting the problem. It is not required that the condition come into play in the course of the individual's job. 

Circuit Judges Danny Boggs and Ralph Guy, as would be expected, joined to affirm the summary judgment on Thompson's disability discrimination claim; Judge Helene White dissented and would have reversed on this claim.

Robert L. Abell
www.RobertAbellLaw.com

Proof of Pretext - How Much Is Needed?

Employment discrimination, retaliation and wrongful termination cases often come down to the issue of pretext -- is the employer's explanation for doing whatever adverse was done not more than a lie, a lie offered to try and coverup something unlawful? Being caught in a lie creates all sorts of problems for employers and parties in all sorts of cases. 

The Sixth Circuit recently examined the question of pretext in Kirilenko-Ison v. Bd. of Ed. of Danville, Ky. The plaintiffs were two school nurses who voiced their concerns about the medical assistance that was being offered to two students. For their efforts, they claimed, one was suspended and the other was not hired when later a full-time opening came open. The district court, Hon. Danny C. Reeves of the Eastern District of Kentucky, granted the school board a summary judgment on all claims. The Sixth Circuit reversed.

The court found that both the plaintiffs had presented triable issues of fact on the issue of pretext. The court's discussion and examples are helpful.  First, "[a]ll that a plaintiff must show in order to overcome a defendant's motion for summary judgment at this stage is that a reasonable juror could find that the defendant's reasons were pretextual. The plaintiff does not need to prove pretext, she only needs to show that the question of pretext is a genuine factual dispute." So the proof at the summary judgment stage need not knock down the Great Wall of China, and the following was sufficient:

• the school principal screamed at them and told them to do what the parent of a child with serious health problems wanted, notwithstanding the negative impacts on the child and on their nursing licenses
  
  
• a threat that one's continued advocacy could cost her her job
  
  
• allegations in a third party's resignation letter that the school board was pressuring the nurses to go along and shut up
  
  
• one's long work history for the school board and the absence of prior disciplinary measures
  
  
• the temporal proximity between one's most strenuous advocacy and her suspension.

Here, as in all things, context is important. Consider first the supposed sins of the plaintiffs: advocating for proper and necessary medical care for students, not refusing, advocating, which would seem exactly what they were hired to do and what the Kentucky Board of Nursing requires them to do. Second, there is bullying and threatening followed by action that is at best disproportionate. That doesn't make sense; reasonable jurors could easily view this type of scenario as retaliatory and the school board's explanations unworthy of credence. 

This case is the topic of an earlier post: Causation and Lapse of Time In Retaliation Cases.

Robert L. Abell
www.RobertAbellLaw.com